Plaintiff v Defendant

(i) when you are around Mr McMahon 'strange things happen';

(ii) the defendant had been subject to a media campaign and anonymous internet attacks regarding her dispute with Mr McMahon;

(iii) during that period, Mr McMahon was spotted in her street, her car was vandalised and her cat died (the Hayward publication).[1]

(b) words the defendant allegedly said to Ms Leanne Nicholson in September 2011 to the following effect:

(i) Luke McMahon had killed the defendant's cat;

(ii) Luke McMahon had damaged the defendant's car; and

(iii) Luke McMahon was a psycho (the Nicholson publication).[2]

2 The plaintiff says that he became aware of the Hayward publication on 29 June 2012 and the Nicholson publication in September 2012.

3 By summons dated 18 August 2014, the plaintiff seeks an order extending the limitation period for the cause of action pursuant to s 23B of the Limitation of Actions Act 1958 (Vic) ('the Act').

5 The plaintiff also relies on written submissions dated 24 September 2014.

6 The defendant opposes the application and relies on written submissions dated 24 September 2014.

7 The defendant made an application to cross-examine the plaintiff which was granted.

8 The plaintiff's evidence is somewhat confusing. It is difficult from his affidavit material to accurately determine the chronology of events. His evidence under crossexamination went some way to clarifying the chronology. The key evidentiary issue is when the plaintiff first became aware of the alleged defamatory publications.

9 The plaintiff is a law student at the University of Melbourne. He is not legally represented. The plaintiff was employed in 2008 as a program manager with the Jesuit Social Services ('JSS'). The plaintiff became involved in a dispute with the JSS as a union delegate. The defendant was also involved in that dispute.[3] In the course of the dispute with JSS in 2008, there were emails between the plaintiff and the defendant, in which the defendant disputed the plaintiff's role as the Occupational Health & Safety delegate. A meeting occurred in October 2008 between the defendant and the plaintiff, during which the plaintiff says the defendant subjected him to some 'colourful language'.[4]

10 In October 2008, the plaintiff reapplied for a position with the Brosnan Youth Services, a program run by the JSS. The defendant was a director of the Brosnan Youth Services. The plaintiff was informed that his new employment contract stated that as a condition of his continued employment he must agree to enrol in a course of study (a tertiary degree in human services) and to show evidence within a six month period of this occurring. The plaintiff sought legal advice from his union about the new employment contract.[5] In this period the plaintiff submitted a formal complaint about the defendant. An investigation was conducted and the plaintiff's allegations were found to be unsubstantiated. The plaintiff stated that he believed he was being bullied by the defendant.[6]

11 The plaintiff considered he was unlawfully dismissed by the Brosnan Youth Services[7] and that the defendant was involved in the internal decision-making process leading to his dismissal.

12 The plaintiff's evidence is that the Hayward publication was made, at the latest, on 31 January 2011.

13 Professor Hayward made an application for an intervention order against the plaintiff in the Magistrates' Court and an interim intervention order was granted against the plaintiff on 1 February 2011.

14 In May 2011, the plaintiff lodged a complaint about RMIT and Professor Hayward with the Victorian Privacy Commissioner (Privacy Complaint). In particular, the plaintiff stated that Professor Hayward had used the plaintiff's personal file in his application for the intervention order in February 2011.[8]

15 In September 2011, the alleged Nicholson publication occurred.

16 On 14 September 2011, the plaintiff attended a mediation as part of the the Privacy Complaint against RMIT. The mediation was attended by RMIT solicitors. In his first affidavit dated 18 August 2014,[9] the plaintiff deposed that:

I attended mediation with RMIT on 14 September 2011 intending to request clarification from the RMIT solicitor regarding claims that Professor Hayward had contacted a former employer.

17 In cross-examination, the plaintiff said that what he deposed to at paragraph 24 of his 18 August 2014 affidavit was 'in error'.[10]

18 When asked in crossexamination whether he made a mistake when he swore the 18 August 2014 affidavit, the plaintiff said:

Do you say that this is unclear, what is written here, or do you say - - - ?No, I say it's clear, I say it's in error.

You made a mistake when you swore that?---No, look I would've - it was an attempt at (indistinct) in what is a long protracted process and I attempted to be concise and in attempting to be concise what I've done is mis-stated the situation. ...

Just pausing there, I don't want you to make a speech as to what you were trying to do, you have said you were trying to be concise about something, what were you trying to be concise about?---What I was trying to express was that I expected to return to mediation and based on that expectation, because the first mediation had actually been stood down, because RMIT's solicitors needed to seek instruction, I had an expectation that based on the inclusion of the matter, which I have detailed in my third affidavit, that I would be returning to mediation at some point after 20 March and I would have the opportunity to raise the issue in that space.[11]

19 The plaintiff's evidence is that he did not intend to seek clarification from RMIT's solicitors on 14 September 2011. The plaintiff said that he attended the mediation on 14 September 2011, but that the mediation was terminated on that day because he gave RMIT's solicitors some documentation on which they needed to seek instructions. The plaintiff said it was his understanding that the mediation would resume.

20 On 10 November 2011, the plaintiff filed an application for an intervention order against Professor Hayward. In his 18 August 2014 affidavit the plaintiff states:

EVENTS LEADING TO IDENTIFICATION

(11) On 10 of November 2011, I filed an application for a intervention order of my own after Professor Hayward had posted comments online falsely identifying me as author of a website titled 'slackbastard' which exposes members of the 'far right' in Australia.

(12) I am not the person 'Slack Bastard' and held strong fears that Professor Hayward's actions placed me at a real risk of being harmed by NeoNazis. ...

(13) I believed this action, coupled with Professor Hayward's prior conduct constituted a course of conduct for the purposes of the relevant Act.

(14) On the 20 March 2012 the matter came before the Melbourne Magistrates Court for contest.

(15) I subpoenaed Mr Boucher, a student rights officer at RMIT, to give evidence about his knowledge of particular procedures at RMIT University.

(16) During the hearing I became aware that Professor Hayward had contacted Mr Boucher by telephone on 7 February 2011.

(17) It was at this time that I became aware Professor Hayward had spoken with a former manager and the former manager had claimed that during the previous dispute, I may have followed them, and I may have killed their cat.

(18) Mr Boucher did not recall the person's name and it was not proffered by Professor Hayward's counsel.

(19) On the basis of the evidence presented at this hearing the Magistrate disagreed that there was a course of conduct and declined my application.

(20) It is important to point out that the Defendant was not at any time my 'manager'. She was a director of Jesuit Social Services where I worked, there being two levels of management between us. I never reported to her directly.

(21) I had also worked in several community organisations over preceding years and had many 'managers'.

(22) Not knowing who Professor Hayward had spoken with, or if the claims had any truth, I moved forward with a related complaint which I made on 4 May 2011 to the Victorian Privacy Commissioner.

(23) In reviewing the complaint the Privacy Commissioner had made a positive determination on 8 August 2011 with respect to RMIT's disclosure of my personal information to Mr Hayward. ...

(24) As part of my privacy complaint I attended mediation with RMIT on 14 September 2011 intending to request clarification from the RMIT solicitor regarding claims Professor Hayward had contacted a former employer.

(25) I was not afforded the opportunity to seek more information because RMIT solicitors terminated the mediation upon arrival, and RMIT refused to return to the mediation process.

(26) I responded to confirmation that mediation had failed from Privacy Commissioner and requested the matter proceed to VCAT on 30 March 2012. ...

(27) The privacy complaint proceeded to VCAT including claims that Professor Hayward had spoken with a previous employer.

(28) On 29 JUNE 2012, I obtained information from RMIT that Professor Hayward had previously contacted the Defendant after he [Googled] my name 'in late 2010', and during the course of Professor Hayward's conversation the Defendant spoke the words (the Hayward words) detailed in my statement of claim. ... [12]

21 The plaintiff's evidence was that he became aware of the Hayward publication on 20 March 2012, in the course of the intervention order application he filed in the Magistrates' Court on 10 November 2011. His evidence was that he subpoenaed Steven Boucher and in the course of leading evidence, Mr Boucher gave evidence that Professor Hayward had spoken to a former manager and the former manager had claimed, during a previous dispute, that the plaintiff may have followed the former manager and may have killed their cat.

22 In his second affidavit affirmed 2 September 2014, the plaintiff maintained that he became aware of the Hayward publication on 29 June 2012. The plaintiff deposes that it was when the Privacy Complaint came before the Victorian Civil and Administrative Tribunal (VCAT) on 29 August 2012 that Professor Hayward affirmed his claim regarding the defendant. The plaintiff deposes:

...

(11) The Privacy matter referenced in my prior affidavit came before VCAT on 29 August 2012. During the hearing Professor Hayward affirmed his claims regarding the Defendant. I understood during the period leading up to the hearing Professor Hayward could change his evidence. I felt it was important that he affirm his claims regarding the Defendant.

(12) I was in an exam period at University between October and December 2012. I found dealing with matters in the lead up to and during this period extremely stressful. As I am a post-graduate student each subject costs $4200. Failing subjects can, in some circumstances, result in exclusion from the program. I was under a great deal of pressure.

(13) In December and late January 2012, I also undertook a summer subject at University. I undertook and an exam on the 26 of February 2013. Classes started again at the end of March 2013.

(14) I had also found prior proceedings stressful and embarrassing. I was concerned commencing litigation in the absence of advice or the ability to examine matters in any detail would be fatal to any claim.

Concluding matters:

(15) On 29 June 2012, I was not aware of the limitation period for commencing an action for defamation.

(16) I commenced the proceeding on 28 June 2013 within 1 year of 29 June 2012, the date I found out about the Hayward publication. This was also within 1 year of September 2012, which was the date I found out about the Nicholson publication.

(17) I commenced proceedings within 3 years of both publications.

23 In the plaintiff's third affidavit affirmed 29 September 2014, he attempts to clarify the 18 August affidavit and in particular the suggestion that he wanted to clarify from the RMIT solicitors 'regarding claims that Professor Hayward had contacted a former employer':[13]

(5) What I meant was the following;

(6) I attended mediation with RMIT on the 14 of September 2011 which was terminated upon arrival because RMIT's counsel needed to seek further instructions.

(7) Following this, on the 15 of February 2012, I attended a directions hearing at the Melbourne Magistrates' Court relating to the IVO I had taken against Professor Hayward.

(8) During the hearing, I noted that Professor Hayward's counsel was in possession of my RMIT student file. I found this strange, because, while I had subpoenaed material from RMIT, I was not seeking any orders against them.

(9) Following the 15 FEBRUARY 2012 hearing, I attached these additional matters related to further disclosers by RMIT to my existing complaint with the Victorian Privacy Commission. I have attached the complaint and marked it 'Exhibit 1C'.

(10) It was because of my further complaint to the Privacy Commission, and the 20 MARCH 2012 hearing having taken place; that I held an expectation that [an] additional/continued mediation hearing would take place. I understood this to be standard practice before a matter can be referred to VCAT.

(11) Because of the above, I understood I would be given the opportunity to clarify matters that were raised at the 20 March 2012 hearing.

(12) I was not given this opportunity because I was informed RMIT had declined to return to the mediation process. It was on this basis that I referred the matter to VCAT. ... [14]

24 The Nicholson publication is alleged to have taken place in September 2011. The plaintiff says that by September 2012 he was aware that Leanne Nicholson had communicated the defendant's publication to Devon Harris, a former youth worker at JSS. The plaintiff asked Devon Harris to provide details of the conversation with Leanne Nicholson in a statutory declaration. In a statutory declaration dated 29 October 2012, Devon Harris records details of the Nicholson publication. The plaintiff contacted Devon Harris in early October 2012 and his evidence is that Leanne Nicholson confirmed that the defendant had communicated 'the matter listed in the statement of claim'.[15]

25 Following his conversation with Leanne Nicholson, on 20 October 2012 the plaintiff served concerns notices in relation to the Hayward and Nicholson publications on the defendant. The plaintiff's evidence is that he had hoped the matter could be resolved without recourse to litigation.[16]

26 The plaintiff commenced this proceeding on 28 June 2013.

27 The defendant submits that the plaintiff was aware of the Hayward publication at the time of the mediation on 14 September 2011 and that this is supported by paragraph 24 of his 18 August 2014 affidavit. The defendant submits that the plaintiff's subsequent attempts in cross-examination and two later affidavits suggesting that he did not become aware of the Hayward publication until 29 June 2012 should not be accepted. The defendant submits that it was only upon seeing the defendant's case, including the defendant's written submissions dated 24 September 2014, that the plaintiff has 'deliberately or otherwise' reconstructed events to meet the case put against him.[17]

28 Having reviewed the evidence, I accept that the plaintiff was not aware of the Hayward publication until 20 March 2012. I accept that paragraph 24 of the 18 August 2014 affidavit was an error by the plaintiff and that it was after hearing Mr Boucher's evidence on 20 March 2012 that he wanted to clarify the issue with RMIT's solicitors at a resumed mediation.

29 From 20 March 2012 to 29 June 2012, the plaintiff failed to take any real steps to ascertain the identity of the defendant. In his affidavit dated 2 September 2014, the plaintiff deposes that he was concerned between 20 March 2012 and 20 June 2012, that Professor Hayward could change his evidence and that he thought it was important that Professor Hayward 'affirm' his claims regarding the defendant. His evidence was that between October 2012 and December 2012, he was in an exam period at university and found dealing with the alleged defamation stressful. Between December 2012 and late January 2013 he undertook a summer subject, an exam in February 2013 and had regular classes commencing at the end of March 2013. Importantly, the plaintiff's evidence is that he did not take any action in relation to either publication prior to 28 June 2013 because 'I had also found prior proceedings stressful and embarrassing. I was concerned commencing litigation in the absence of advice or the ability to examine matters in any detail would be fatal to any claim.'[18]

30 The plaintiff submits that he did not use the Privacy Complaint or the VCAT hearing as an alternative to issuing defamation proceedings against the defendant. The plaintiff submits he did not know who made the publication. He submits that he could not have contacted his former employers in order to investigate as this would have been 'republishing the material without any basis'.[19] The plaintiff submits that it was not until he obtained Professor Hayward's witness statement as part of the VCAT hearing on 29 June 2012, that he felt he could proceed with the defamation claim against the defendant.

31 The plaintiff said in his oral submissions in relation to the Nicholson publication that he contacted Sarah Covill, his former manager, because he wanted to find out the truth of the allegations. He conceded that he knew of the Nicholson publication at the time he contacted Sarah Covill in September 2012.

32 The plaintiff stressed that the publications were verbal and therefore avenues such as prelitigation discovery would not have assisted the plaintiff in identifying who made the publication or confirming the publication.

33 The plaintiff submits that as of 20 March 2012 he had 'hearsay evidence' from Mr Boucher about the Hayward publication. Following the failed mediation in relation to his Privacy Complaint, the plaintiff requested the matter be referred to VCAT on 30 March 2012. He sent an attachment which is found as exhibit 1C to the plaintiff's 26 September 2014 affidavit, setting out further matters relating to the complaint. Exhibit 1C refers to Professor Hayward having the plaintiff's personal file in the course of the plaintiff's application at the Magistrates' Court for an intervention order against Professor Hayward. The attachment exhibited at exhibit 1C states:

... In response, the Complainant made an AVO application against Professor Hayward in the Magistrates Court under the Personal Safety Intervention Order Act 2010 (VIC). In support of the application the Complainant requested material relating to correspondence from Profe Hayward's employer - the respondent - in the form of a subpoena. ...

Additionally, the complainant having successfully obtained the material sought in the subpoena noted that the correspondence did not contain copies of his passport or other identification as was claimed by the RMIT solicitor ...

34 The defendant submits that from at least September 2011 and at the latest 20 March 2012, the plaintiff was on notice of claims that defamatory allegations may have been made to Professor Hayward by a former employer. The evidence confirms that it was the events in March 2012 which led the plaintiff on a path of enquiry, including contacting Sarah Covill in September 2012.

35 I accept that the plaintiff was first aware of the Hayward publication on 20 March 2012. At that stage he was not aware of the defendant's identity. The plaintiff was, however, aware that the Hayward publication was made by a former manager of his and that the former manager had made the alleged defamatory statements during a previous dispute. The plaintiff submits that in circumstances where the defendant was not at any time his manager but a director of JSS where he worked and that he had never reported to her directly, he did not necessarily assume the defendant was responsible for the Hayward publication. However, under crossexamination the plaintiff agreed that he considered the defendant could 'definitely' have been on a list of people who he thought made the Hayward publication.[20]

36 The plaintiff's evidence confirms that he had previously been involved in a dispute with the defendant and that he had submitted a formal complaint about the defendant. He considered the defendant had bullied him throughout the dispute and was involved in the decision-making process leading to what the plaintiff considered was his unlawful dismissal from the Brosnan Youth Services.

37 I consider in the circumstances that as at 20 March 2012 the plaintiff had enough information to know of the Hayward publication and that it had likely been made by the defendant. The defendant's identity could have been easily confirmed by RMIT, Professor Hayward or by telephoning Sarah Covill, [21] Devon Harris[22] or Leanne Nicholson, as the plaintiff did in September and October 2012.[23]

38 I consider the plaintiff failed to take any real steps to ascertain the defendant's identity or to issue the proceeding because of other factors such as:

(i) his decision to pursue the Privacy Complaint;

(ii) his university exams between October and December 2012, which he states put him under pressure;

(iii) his decision to undertake summer subjects in December 2012 and January 2013, with regular classes commencing in March 2013; and

(iv) his lack of opportunity to consider the claim and his lack of advice in relation to the claim.

39 The Defamation Act 2005 (Vic) (Defamation Act) amended the Limitation of Actions Act 1958 (Vic) (the Act), which in s 5(1AAA) says that:

An action for defamation must not be brought after the expiration of 1 year from the date of the matter complained of.

40 Section 23B of the Act, however, provides as follows:

(1) A person claiming to have a cause of action for defamation may apply to a court for an order extending the limitation period for the cause of action.

(2) A court, on an application under subsection (1), must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within one year from the date of the publication, extend the limitation period mentioned in section 5(1AAA) to a period of up to 3 years from the date of the publication.

(3) A court may not order the extension of the limitation period for a cause of action for defamation other than in circumstances specified in subsection (2).

(4) If a court orders the extension of a period of limitation applicable to a cause of action under this section, that period of limitation is accordingly extended for the purposes of an action brought by the applicant in that court on the cause of action that the applicant claims to have.

(5) An order for the extension of a limitation period, and an application for such an order, may be made under this section even though the limitation period has already expired.

41 Sections 5(1AAA) and 23B were introduced into the Act by the Defamation Act in pursuance of a scheme of uniform defamation laws across Australia. These provisions are substantively replicated in a number of other Australian jurisdictions.[24] The objects of the scheme, as set out in s 3 of the Defamation Act, are as follows:

(a) To enact provisions to promote uniform laws of defamation in Australia.

(b) To ensure that the law of defamation does not place unreasonable limits on the freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance.

(c) To provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matters.

(d) To promote speedy and non-litigious methods of resolving disputes about the publication of a defamatory matter.[25]

42 In order to achieve the fourth objective, the scheme provides for a publisher to offer to 'make amends' to the aggrieved person within 28 days of receiving a 'concerns notice' under s 14 of the Defamation Act, which must be in writing and sufficiently set out the defamatory imputations in relation to which the concerns notice is given.[26]

43 The principles to be applied on an application for an extension of time under s 23B were stated by Beach J (as his Honour then was) in Casley v Australian Broadcasting Corporation ('Casley').[27] This was a decision in the Trial Division of the Supreme Court of Victoria, in relation to which leave to appeal was refused by the Court of Appeal. In Casley, Beach J canvassed interstate decisions on provisions equivalent to s 23B of the Act in formulating a number of principles relevant to the determination of applications under s 23B.[28] The applicable principles as stated by Beach J, are as follows:

(a) First, under s 23B the burden is on the applicant for an extension of time to point to circumstances which make it not reasonable in the circumstances to have commenced a proceeding within one year from the date of the publication.

(b) Secondly, the circumstances that might give rise to an extension are left at large.

(c) Thirdly, the test posed by s 23B(2) is an objective one. It is not satisfied by showing that the applicant believed that he or she had a good reason not to sue.

(d) Fourthly, if the court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced a proceeding within the one year period, then it must extend the limitation period. Unlike other extension of time provisions, there is no discretion whether or not to extend time. However, a discretion exists as to the length of the extension to be granted which, in any event, may not exceed three years from the date of the defamatory publication.

(e) Fifthly, the section requires more of an applicant than to show that it would have been reasonable not to commence a proceeding until after the one year period had expired: the court must be satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced a proceeding within the one year period.

(f) Sixthly, the circumstances must be sufficiently compelling to satisfy the court that it was not reasonable in the circumstances to commence a proceeding within the one year period the law ordinarily requires litigants to commence proceedings.

(g) Seventhly, s 23B of the Act proceeds on the assumption that there may be circumstances where it will not be reasonable for a plaintiff to commence a proceeding to vindicate his or her legal rights in accordance with that time limit.[29]

44 Applying the above, Beach J refused to grant the extension.

45 Beach J restated these principles in Trkulja v Dobrijevic[30] and were recently adopted and followed by Dixon J in Chen v Evans ('Chen').[31] In the latter case, his Honour also refused to extend the limitation period.

46 The approach taken by Beach J was upheld by the Court of Appeal. In his Honour's reasons for refusing leave to appeal, Hansen JA (with whom Robson AJA agreed) extensively considered the reasoning and conclusions of Beach J as well as the authorities referred to by his Honour, and concluded that there were no grounds for granting leave to appeal in the matter. Hansen JA explained that the facts of the particular case are most important:

The first observation is that task is to determine if the statutory test is satisfied. That is to say, in the circumstances was it not reasonable for the applicant to commence an action within the period of one year from the date of the publication. The concentration is upon the circumstances of a particular case.[32]

47 In the present circumstances, the real issue that arises is whether the Court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced a proceeding within the one year period from the date of the Hayward publication and the Nicholson publication. If the Court is so satisfied, then it must extend the limitation period for a period of up to three years from the date of publication.

48 It has been recognised in the cases that a plaintiff who is unaware of the publication of the defamation will satisfy that test.[33] In Lakaev v Denny ('Lakaev'),[34] allegedly defamatory comments posted on a blog in 2007 were discovered by the plaintiff after the expiry of the limitation period. In seeking an extension of time to commence defamation proceedings, the plaintiff relied on her inability to identify anonymous commenters to argue that it was not reasonable for her to commence proceedings within the limitation period. However, the commenters' identities were discovered through the process of pre-trial discovery, which the plaintiff did not instruct her solicitors to conduct until 12 months after she discovered the documents. There was no adequate explanation for these delays. Rather, the plaintiff had pursued an online campaign against the commenter, deliberately taking a non-litigious attitude to the matter.

49 More recently, this issue was considered by Dixon J in Chen.[35] In that case, the applicant and his company were named in an article on a blog entitled 'Aussie Criminals and Crooks', which the applicant claimed was defamatory of him. The article was posted on the blog on about 18 May 2011. However, it did not come to the applicant's attention until 16 April 2014, when it was shown to him by a third party.

50 On discovery of the article, the applicant entered into correspondence with the website and with Google, made enquiries about the proprietor of the domain name and sought legal advice. On 15 May 2014, the applicant sought and was granted orders extending the time to file his application to 16 May 2014.

51 In his Honour's decision in Chen, Dixon J stated as follows:

It has been recognised in the cases that a plaintiff who is unaware of the publication of the defamation will satisfy [the test in s 23B]. I accept the plaintiff's explanation in his affidavit that he was unaware of the article until about 6 weeks ago. It is reasonable to expect that not all persons are familiar with all the types of material that may be found on the internet or that one can search for it. I think it unreasonable to expect that any individual should search the world wide web for defamatory material in order to vindicate his or her rights before a limitation period expires.[36]

52 His Honour cites a number of cases in support of the proposition that a lack of awareness of the publication of the defamation will satisfy the test in s 23B. However, none of those cases involve a plaintiff who was aware of the publication but unaware of the publisher's identity. Nonetheless, a number of passages cited do lend support to the proposition that it would not be reasonable for a plaintiff to commence proceedings within the limitation period where they do not discover the publisher's identity until after the expiration of that period.

53 In Pingel v Toowoomba Newspapers Pty Ltd ('Pingel'),[37] the applicant sought an extension of time to file proceedings for defamation on the basis that she and the defendant had been attempting to resolve the dispute without resort to litigation pursuant to procedures outlined in the Defamation Act 2005 (Qld) throughout the limitation period. An extension of time was granted by the trial judge. The decision was overturned on appeal on the basis that there was no prospect of the matter being settled within the limitation period, and no evidence that the commencement of proceedings within that period would have impaired settlement negotiations. In the course of his Honour's judgment, Fryberg J discussed the circumstances in which it would not be reasonable for a plaintiff to commence proceedings within the limitation period, stating that:

Obviously, it is not possible for a person to commence proceedings for defamation if she is unaware of the fact of publication or the identity of the publisher.[38]

54 In Ahmed v Harbour Radio Pty Ltd ('Ahmed'),[39] the plaintiff alleged that the defendant had published defamatory statements made by a radio host named Ray Hadley, who was employed by the defendant. The plaintiff commenced proceedings against the defendant within the statutory limitation period, and subsequently sought leave to extend the time within which to commence proceedings against Mr Hadley himself. In that case Simpson J refused to grant the extension of time, stating that;

Section 56A entitles the plaintiff to an extension of time if it was not reasonable, in the circumstances that existed, to have commenced proceedings within one year of the publication of the broadcast. One can envisage circumstances in which it would not be reasonable for a plaintiff to commence proceedings within that time. One is where the plaintiff is unaware of the publication. Another is where the plaintiff is unable to identify the publisher or prove publication. (In this regard the obligations of the legal practitioner under s 347 of the Legal Profession Act 2004 and the provisions of s 348 thereof are to be borne in mind.) Another circumstance may be where the plaintiff has engaged in nonlitigious processes to vindicate his or her rights.[40]

55 Sections 347 and 348 of the Legal Profession Act 2004 (NSW) restrict legal proceedings being brought without reasonable prospects of success and provide for costs orders to be made against law practices acting without reasonable prospects of success. Such considerations may, by analogy, lead to a consideration of the overarching obligations in the Civil Procedure Act 2010 (Vic) ('the CPA') in cases such as these. It seems difficult to envisage the situation in which proceedings could be commenced against an unknown defendant at all, let alone on a proper basis in accordance with s 18 of the CPA.

56 In respect of each publication for which an extension is sought, the applicant must establish that it was 'not reasonable in the circumstances' for the plaintiff to have commenced an action within time.[41] As Beach J noted, this is a difficult hurdle for a plaintiff to overcome unless there are unusual circumstances.[42] It does not assist a plaintiff to show that it was reasonable not to commence a proceeding within time.[43]

57 Importantly, even if the plaintiff can satisfy the difficult test, the Court has a discretion as to the length of any extension to be granted.[44] The length of any extension to be granted is a matter for discretion. Ordinarily, the discretion should be exercised to extend time to the point at which it ceased to be 'not reasonable' in the circumstances for the plaintiff to have commenced an action.[45]

58 Where the plaintiff knows or suspects a defamatory publication has occurred, the plaintiff is expected to take prompt steps to obtain access to the publication, with a view to assessing whether the communication is defamatory or not and whether or not to commence a proceeding.[46]

59 It has been said that unusual circumstances may be present where the plaintiff is unaware of the publication within the period of one year from the publication having occurred.[47] However, the circumstances which justify an extension of time will depend on the facts of each particular case. In Wookey v Quigley [No 2] ('Wookey'),[48] KennethMartin J said:

[77] Where a person does not know the content of a publication to someone which they know exists, yet they suspect it may be defamatory of them, the person would ordinarily be expected to take prompt steps to obtain access to the publication, with a view to assessing whether the communication is defamatory or not ...

[82] The statutory policy underlying s 15 eliberately sets a short limitation period. This demands that parties and their advisers act timeously in respect of the narrow limitation window that is allowed ...

[84] ... the threshold imposed under s 40(2) to secure an extension of time is a high one, especially in the face of a period of delay that may be explicable, albeit not excusable. ...[49]

60 It is clear that a lack of knowledge of the identity of the defendant would render it 'not reasonable' to commence proceedings within the statutory time limit. In this case, the Hayward publication was allegedly made on 31 January 2011 and the Nicholson publication in September 2011.

61 The limitation periods respectively, expired on 30 January 2012 and in September 2012. Given my findings that the plaintiff became aware of the Hayward publication on 20 March 2012, and the Nicholson publication in September 2012, there are two relevant delays that must be addressed.

62 The first delay relates to the issuing of the proceeding within the limitation period. I am satisfied that it was not reasonable for the plaintiff to have filed the proceeding in the limitation period given he was not aware of the Hayward publication until 20 March 2012 and the Nicholson publication in September 2012.

63 The second relevant delay relates to what steps the plaintiff undertook to issue the proceedings once he became aware of the publications and the identity of the defendant.

64 A key distinction between Lakaev and Chen, discussed above, and this case is the promptness with which the plaintiff took steps to determine the identity of the defendant prior to making an application for an extension of time. In Chen, the plaintiff took only one month to determine the identity of the author of the online article, seek legal advice and make an application under s 23B.[50] In Lakaev, the plaintiff took 12 months before even instructing her solicitors to take steps to determine the identity of the defendants, and it was more than 24 months before an application for an extension of time was made.[51] Although not as extreme as the case of Lakaev, it does seem as though, in this case, the plaintiff could have acted more promptly in determining the identity of the defendant, especially given that it ultimately took three phone calls to do so.

65 Even assuming that the plaintiff did not delay unreasonably in determining the identity of the defendant after becoming aware of the Hayward publication, it seems clear that it ceased to be 'not reasonable' for him to commence proceedings in early 2013. The plaintiff was aware of both publications and the identity of the defendant by September 2012 at the latest. At this point it can certainly no longer be said that it was 'not reasonable' for the plaintiff to commence proceedings. However, instead, he attempted to resolve the dispute in accordance with the objectives of the Defamation Act by drafting and serving a 'concerns notice' on the defendant on 20 October 2012. It has been suggested that engaging in this process may be sufficient to establish that it was not reasonable for the plaintiff to commence defamation proceedings while negotiations are ongoing.[52] This suggestion has subsequently been questioned and clarified so as not to mean that engaging in non-litigious dispute resolution processes alone will always mean that s 23B is satisfied.[53]

66 On this basis, it is at the very least arguable that it was not reasonable for the plaintiff to have commenced proceedings during the period of 28 days following the service of the concerns notice on the defendant, so as to allow for a response and potential resolution of the dispute without resort to litigation.

67 In all the circumstances of the case, it does not seem as though it was not reasonable for the plaintiff to commence these proceedings within one year from the date of the Hayward publication. However, had the plaintiff taken prompt action to contact Sarah Covill, Devon Harris and Leanne Nicholson, he would have not only discovered the identity of the defendant but also become aware of the Nicholson publication very shortly after 20 March 2012. The plaintiff could then have drafted a 'concerns notice' and, assuming that it was not reasonable for him to commence proceedings during the 28 days following the service of that notice, it would have ceased to be not reasonable for him to commence proceedings very shortly thereafter.

68 In any event, had he acted promptly and diligently, it certainly ceased to be not reasonable for the plaintiff to commence proceedings at the latest in early 2013, well before 28 June 2013. Even if it were accepted that he did not become aware of the Hayward publication until 29 June 2012, this does not afford the plaintiff the benefit of the full 12 month limitation period from that date. Rather, as was the case in Chen,[54] he was expected to have acted promptly and file proceedings as soon as is reasonable in the circumstances after becoming aware of the publication.

69 The plaintiff's application for an extension of time is dismissed.

[1] Plaintiff's statement of claim dated 29 June 2013 [3].

[2] Plaintiff's statement of claim dated 29 June 2013 [5].

[9] Affidavit of Luke McMahon sworn 18 August 2014 [24].

[11] Transcript page 13, lines 11-31; page 14, line 1.

[12] Affidavit of Luke McMahon sworn 18 August 2014 [11]-[28].

[13] Affidavit of Luke McMahon sworn 18 August 2014 [24].

[14] Affidavit of Luke McMahon affirmed 29 September 2014 [4]-[12].

[15] Affidavit of Luke McMahon sworn 18 August 2014 [47].

[16] Affidavit of Luke McMahon sworn 18 August 2014 [58].

[18] Affidavit of Luke McMahon affirmed 2 September 2014 [14].

[21] Affidavit of Luke McMahon sworn 18 August 2014 [29]-[33].

[24] See, eg, Limitation Act 2005 (WA) s 40; Limitation of Actions Act 1936 (SA) s 37; Limitation of Actions Act 1974 (Qld) s 32A; Limitation Act 2008 (NT) s 44A; Limitation Act 1969 (NSW) s 56A; Limitation Act 1985 (ACT) s 21B.

[25] Defamation Act 2005 (Vic) s 3.

[26] Defamation Act 2005 (Vic) s 14.

[27] [2013] VSC 251 (15 May 2013) [28].

[28] Casley v Australian Broadcasting Corporation [2013] VSC 251 [25]-[27].

[29] Casley v Australian Broadcasting Corporation [2013] VSC 251 [28].

[30] [2013] VSC 261 (21 May 2013) [20]-[21].

[31] [2014] VSC 230 (15 May 2014) [9]-[11].

[32] Casley v Australian Broadcasting Corporation [2013] VSCA 182 (15 August 2013) [54].

[33] Jamieson v Chiropractic Board of Australia [2011] QCA 56 (29 March 2011) [21]-[22].

[34] [2010] NSWSC 1480 (17 December 2010).

[35] [2014] VSC 230.

[37] [2010] QCA 175 (16 July 2010).

[39] [2010] NSWSC 676 (25 June 2010).

[42] Casley v Australian Broadcasting Corporation [2013] VSC 251 [28]; Casley v Australian Broadcasting Corporation [2013] VSCA 182 [43].

[43] Ibid; Trkulja v Dobrijevic [2013] VSC 261.

[44] Noonan v MacLellan [2010] QCA 50; [2010] 2 Qd R 537, 547 (Chesterman JA); [2010] QCA 50 [47].

[45] Noonan v MacLellan [2010] QCA 50; [2010] 2 Qd R 537, 550 (Chesterman JA); [2010] QCA 50 [47], [66]; Ritson v Gay & Lesbian Community Publishing Ltd & ors [2012] NSWSC 483 (18 May 2012) [62].

[46] Wookey v Quigley [No 2] [2010] WASC 209 (17 August 2010) [77].

[47] Wookey v Quigley [No 2] [2010] WASC 209 [38]; Han v The Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498 (6 October 2011) [24].

[48] [2010] WASC 209.

[49] See Limitation Act 2005 (WA); Limitation of Actions Act 1958 (Vic) ss 5(1AAA) and 23B.

[50] Chen v Evans [2014] VSC 230.

[51] Lakaev v Denny [2010] NSWSC 1480.

[52] Noonan v McClellan [2010] QCA 50; [2010] 2 Qd R 537, 542 (Keane JA); [2010] QCA 50 [16].

[53] Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 [42], [89], [105]-[108].

[54] Chen v Evans [2014] VSC 230.